The Chicken Edition

My thoughts—-to share sporadically some of the stuff I stumble upon, metaphorically, while doing legal research. Nothing here will be original, nothing unique. But it might be interesting, or occasionally amusing. This does not constitute legal advice of any kind, and my commentary and quotations may be entirely inaccurate as will any purported assessment of any laws, regulations or precedents. This isn’t a legal brief, but a personal essay, and it reflects no one’s viewpoints but my own.

When I conceived of this notion, I thought that I would randomly search words on the free legal search engine, http://www.canlii.org, and see what comes up.

This is about the searchword “chicken.”

What I did not know but probably should have guessed: there are Chicken Farmers of Nova Scotia Regulations and Chicken Marketing Plan Regulations. For sure, the raising and marketing of chickens should have oversight, the government acting as the mother hen, if you will.

Under the Marketing Regulations, section 2(b), “chick” means a chicken 15 days of age or less not raised or produced for egg production. Under section 2(c), “chicken” means a chicken of any class, 6 months of age or less, raised for meat production, whether live, fresh or frozen and includes any part or parts. Where the Venn diagrams are concerned, all chicks are chickens, but not all chickens are chicks, and a chicken over 6 months old is not a chicken, and a chicken raised for the sheer beauty of its chicken-ness is not a chicken.

Under the Chicken Farmers Regulations, section 2(1), a “free range chicken” means any variety of chicken that, among other criteria, (b|) “has regular access to fresh air, sun, soil and green forage.” “Green forage” is not defined. My inquiry to the internet on Yahoo, “what is green forage?,” brought up search results for “What is horse muzzle for?”, “Why do people think Wiccans are pagan?” and “Does anyone know how to preserve porcini mushrooms in jars?” I’m no further ahead. I am pretty confident that green forage is chicken food that is green. That’s pretty broad. Good luck, chickens.

And, there are “Dressed and Eviscerated Poultry Regulations”. Under section 2(d), “dressed” means the removal of the blood and feathers from poultry after slaughter; (e) “eviscerate” means to remove from dressed poultry the entrails and all other internal organs, the head, the legs at the hock joints, and the oil gland. Seems fairly straightforward. It appears that you have to dress the poultry before eviscerating, maybe to keep the feathers out of the entrails.

Some Nova Scotia caselaw involving the searchword “chickens” includes cases from people who have protested against land-use bylaws related to raising chickens in an area where they are not permitted due to “no livestock” regulations. In R. v. Smedley, the Smedley family kept a very special set of Quebecois chickens in a luxury coop and were charged for breach of a bylaw (the Smedleys, not the chickens). The Smedleys appealed:

[6] The trial judge found as fact that these chickens are pets of that family – they’re pets – that’s what the trial judge found. The property in question was found by the trial judge to be a well-maintained family home with a large lot – a 2.6 acre lot.

[7] On that property is a chicken coop – a luxury chicken coop – described as aesthetically pleasing and immaculately clean by the trial judge. It is 100 feet from the nearest property line.

[8] These chickens are not kept for commercial purposes. The trial judge found that they are not kept for meat and the eggs that they lay are not sold – those eggs are an incidental benefit of keeping these pet chickens.

[9] They are not just any chickens – they are special chickens. They are heritage chickens that are brought to this province from Quebec. The trial judge found that they are in every way inoffensive. There is no excessive or even noticeable noise, no odour. The way in which they are kept is not unsightly. The chickens remain on their property seemingly doing no harm to either the aesthetic qualities or the quiet enjoyment of the property of the immediate neighbours.

So finds the trial judge.

The appellate judge determined that the hearing judge was correct: the judge found that “chickens are indeed fowl.” The appellants were guilty of the charge. As per the decision, it is logical that for chickens not to be livestock, they could not be fowl, and they are definitely fowl. Hence, they are livestock. Plus, the coop was aesthetically pleasing.

Mr. Smedley asked the appellate judge to overrule or call a foul, if you will, the finding that chicken are fowl. The appellate judge determined no error was made, and that chicken are, indeed, fowl, and thus the keeping of them contravenes the legislation against keeping livestock in a no-livestock zone.

There is much regret here. The appellate judge notes that the trial judge “did not want to take those chickens from those children”. The appellate judge, “Likewise, I’m sorry to see those pet chickens go – they would seem to create pleasure for this family without there being any evidence of harm to anyone.”

But, no harm = fowl.

In the Municipality of Kings, I think it may be a summary offence that comes with a fine to own an urban chicken that runs at large ($237.50) or to own an urban chicken that is persistently crowing ($237.50). How persistent is “persistent” crowing must be left to a decision-maker. I wonder if a crowing chicken at large attracts two fines? “Ma’am, is that your chicken running at large and persistently crowing?” “Indeed, she is, but her crowing is intermittent!” If it is no spring chicken, does that matter?

I’m very glad that you can’t sell live chickens under 2 months old that have been dyed or coloured (Baby Chick Protection Act). This is an Easter-responsive regulation and the process looks, frankly, cruel. So, you can kill chickens, but no dyeing.

Who actually cared for the chickens has been evidence in litigation between common-law couples: Barager v. Bent. The historical placement of chicken coops has been evidence in disputes about property boundaries. In another family law case, the consumption of chicken is part of the analysis of whether spouses pool their finances and dine at the same table, or not:

Spouses in such relationships do not maintain different standards of living commensurate with their respective incomes. It is not realistic to think that the spouse who earns $20,000 a year eats chicken while the lower paid spouse at the same table eats Kraft Dinner. Nor is it reasonable that the higher income earner goes to a movie or sports event while his or her spouse sits on a park bench in shabby clothing feeding the pigeons. The reality is that two spouses pooling their incomes likely maintain a comparable standard of living.

Chickens are mentioned when it comes to where people work, such as the KFC; whether a child has had chicken pox; whether work with chickens results in workplace injuries.

In a proceeding by the Barristers’ Society against a lawyer, the consumption of chicken is an evidentiary matter related to a lawyer’s interest in a dating relationship with a client. He

came to her apartment around 6:30 p.m. He brought Kentucky Fried Chicken, a bottle of Vodka, lime pop, tomato juice, 2 candles, a pink rose, some fruit, a bag of Sun Chip potato chips and a newspaper. He also brought a sweater for her son. She testified that they ate supper in the kitchen after she placed the rose in a vase.

So, there it is. Chickens.

Chickens show up in caselaw and are part of a highly regulated industry. So how do I get to what comes next? I’m thinking about banality, and whether this casual search unearths a sort of banality of evil, directing me to Wikipedia (authoritatively):

Hannah Arendt’s book introduced the expression and concept “the banality of evil”. Her thesis is that Eichmann was not a fanatic or sociopath, but an extremely average person who relied on clichéd defenses rather than thinking for himself and was motivated by professional promotion rather than ideology. Banality, in this sense, is not that Eichmann’s actions were ordinary, or that there is a potential Eichmann in all of us, but that his actions were motivated by a sort of stupidity which was wholly unexceptional. She never denied that Eichmann was an anti-semite, nor that he was fully responsible for his actions, but argued that these characteristics were secondary to his stupidity.

This concept has been frequently misunderstood. In his 2010 history of the Second World War, Moral Combat, British historian Michael Burleigh calls the expression a “cliché” and gives many documented examples of gratuitous acts of cruelty by those involved in the Holocaust, including Eichmann. Arendt certainly did not disagree about the fact of gratuitous cruelty, but “banality of evil” is unrelated to this question. Similarly, the first attempted rebuttal of Arendt’s thesis relied on a misreading of this phrase, claiming Arendt meant that there was nothing exceptional about the Holocaust.

So, if we consider the idea of wholly unexceptional stupidity: I’m thinking about my experience as a harassment investigator, where I’ve dealt with cases involving pretty egregious single acts of harassment, and those “death by a thousand cutting remarks” forms of harassment, the ongoing “courses of conduct,” where no one event in isolation is necessarily going to break someone down, but where repeated, stupid, demeaning acts pile on and on and on. I was thinking about how damaging the really banal harassment can be….which I guess means it isn’t banal after all. No one chicken reference is all that important….but when they are tressed to others, witnessed by many, done in a social setting, and at the workplace….?

There are references to chicken in at least two Nova Scotia human rights inquiries. The words show up as part of a larger fabric of disparing insults. An African-Canadian was discriminated against by his employer, Feltenham Backhoe, (C.R. Falkenham Backhoe Services Ltd. v. Nova Scotia (Human Rights Board of Inquiry), because he was the brunt of disparaging “jokes:”

At lunch while others were having fish and chips Mr. Gough felt humiliated when he was told “blacks like chicken and watermelon.”

Mr. Gough was compared to a rabbit. He was told to “nigger it up”. The Board’s initial finding that Mr. Gough was discriminated, challenged on appeal, was upheld.

And then there is the case of Ms. Davison: Davison v. Nova Scotia Construction Safety Association. The word “chicken” appears 52 times in this decision. Ms. Davison was a Training Information Advisor with the Construction Safety Association (“CSA”). She alleged discrimination by her employer.

How do chickens make their appearance? At a BBQ, an employee of the CSA, Mr. Collins, was asked to turn for a picture while bbqing chicken. He grabbed his crotch while posing for the picture.

Further, at this bbq, Ms. Davison reported:

On the night of July 13, 1996, the Nova Scotia Construction Safety Association held a staff barbecue at the home of Mr. Mike Kelly. It was at this staff function that Mr. Bruce Collins made reference to the size of my breasts. This occurred while he was serving chicken from the barbecue to various staff members. Mr. Collins made reference to other female’s [sic] breast size as well. He did this by referring to the amount of chicken he felt certain female staff members needed in order to augment their chest size. He told one female staff member (Angela MacKinnon) that she shouldn’t have any chicken because her chest was already big enough. According to Mr. Collins, I needed two pieces of chicken. I took this to mean that he felt I needed one piece of chicken to augment each of my breasts. I was shocked by his comments – and very embarrassed as well.

Other witnesses commented on the chicken breast reference, for some, folding it into a social evening:

I can’t remember her exact words but I seem to remember her come — Bruce coming in and asking if people needed more breasts or more chicken breasts and her kind of shaking and saying I — no, I’m fine, I — I have enough breasts, or I’m okay, or something like that. I can’t remember her exact words but I have a sense of that happening and everybody laughing and, like, it was a very social night that I can remember. Everybody laughing and having a good time and stuff. And I remember — no, that would be the only thing I can think of that –

Another witness:

Q. And he did he give any indication as to how he decided who should get what number of chicken breasts?

A. He looked from each of and he looked at our chest area, that’s all I really remember and it was another, his type of joke, he thought it was funny.

And the decision continues:

Q. Did you laugh?

A. No.

Q. Were you offended by that?

A. Yes.

The determination of the Board of Inquiry:

After carefully considering all the evidence before me, I conclude that Mr. Collins did make comments that he obviously believed to be humorous based on an analogy between the chicken breasts he was serving and the size of the breasts of the women he was serving them to.

These comments, among other comments and actions, were found to constitute “Mr. Collin’s ongoing pattern of sexual joking constitute a repetitive pattern of sexual comment” and were found to be sexually harassing. But hey, it’s only a chicken comment! Your breasts, and chicken breasts, are aptly compared. Why get so upset?

I can’t speak for Mr. Gough or anyone in his position. Nor can I speak for Ms. Davison. But it is the stupidity of comments that build one on the other, straws breaking the proverbial back, so they are no longer merely stupid or banal, but offend, undermine, belittle, dismiss, degrade. A lot of us have been there. Hearing or seeing jokes that make us wince or cringe or that we participate in laughing at. But chickens come home to roost.

In REX v. SAMPSON, Nova Scotia Supreme court, 1934, an African-Canadian man Daniel Sampson was charged with murder of Bramwell Heffernan, and was convicted to a death sentence. The court considers with the question of whether “mere words” were sufficient to find that man was provoked to act in a moment of “passion,” when there was no actual physical assault that provoked him. Kids threw stones at Mr. Sampson, but he was not hit by them. The court focuses on the trial judge’s instruction to the jury about the events. Here is Mr. Sampson’s statement:

“STATEMENT TAKEN FROM DANIEL F. P. SAMPSON AFTER BEING WARNED” 14-12-33

“DANIEL F. P. SAMPSON (coloured) age 49 yrs. states as follows. I live at 76 Market street, Halifax, N.S. On the morning of July 19th, 1933, I left my home for Flag Pole hill picking berries. I walked out the St. Margaret’s Bay road and crossed the upper dam at the head of Chain Lake opposite the Prospect road. I went up past Riley’s shack to Flag Pole hill.. After passing this shack about a mile I started picking berries. I picked until I got about three quarts of blueberries. I then returned to the railway track and walked towards Halifax until I came to the road which I came in on which led to the main highway opposite the Prospect road. When Z came to the highway I walked towards Halifax until I came to a path leading to the middle dam of Chain Lakes. (I could not tell what time this was as I had no watch). I went down this path and across the dam to the railway and went west on the railway to a stream. I saw a man and a woman at this stream. I do not know who they are. I got a drink of water and started up the track. When I got on to the track I saw two boys they were walking towards Halifax I did not know who they were.

I passed them on the track after I passed them they started to make fun of me and called me names and began firing rocks at me. I did not pay any attention to them. I just kept walking up the track a short way and picked some berries. I returned back down the track to the stream where I got another drink. The man and woman were not there when I went back the second time. About a month previous to July 19th, 1933, while going down the path between the highway and the middle dam on Chain Lakes I found a large knife by the side of this path. I hid it. When I went down this path on July 19th, 1933, I got this knife and put it in my pocket there was a sharp point on this knife and I wrapped paper around the point so that it would not cut me. After having my second drink I started down the track towards Halifax and saw these two boys they began calling me names; these boys were wearin blue overalls and white blouses and had berry tins. The first .name they called me was coon, nigger and baboon face and kept firing stones at me. They kept moving all the time towards Halifax. I took my time and walked slowly down the track these two boys kept on calling me names and throwing stones. I let on that I was not noticing them. I got alongside of them they were on the right hand side of the track hunched down picking berries about eight feet from the track. I passed them and they started calling me names and throwing rocks. I lost my temper then and went back to the boys did not move, I went over to them took the knife out of my pocket and stabbed the biggest boy in the back. He ran down the track screaming. I then stabbed the other boy twice. I then threw the knife in the woods towards the lake. I then went back up the track to the path leading over the middle dam to the main highway and went to my home at 76 Market street Halifax. The knife just shown to me is the knife which I stabbed these two boys with

“This statement was given of my own free will and accord, and was read over to me before being signed by me.” (signed) Daniel P. P. Sampson X His mark

“Witnesses: W. M. Beazley, Thos. W. McKay.”

The court on appeal concerned itself with whether Mr. Sampson was provoked, so that the conviction could have been for a lesser charge, manslaughter and not murder. One appeal judge notes that Mr. Sampson’s conduct should be considered in the context of his “low mentality”. “He was thus particularly susceptible for this reason and by reason of his race to the insults offered to him and perhaps might not unreasonably be presumed to have lost control of himself so as to justify a finding of manslaughter.” This judge would order a new trial, with the jury being instructed to consider that Mr. Sampson was not an “ordinary man” because of this “low mentality.” His race is not further mentioned, but the judge states that “it must now as a matter of law be ungrudgingly conceded that mere words may constitute an effective provocation,” which seems at least to imply that the racist content of the words was relevant.

… Was calling this man names … sufficient to deprive an ordinary person of the power of self control[?].

On whatever standard of mentality the prisoner is to be judged, the alleged causes for his provocation cannot be unduly belittled, nor the case dealt with on the basis that the prisoner’s statement of these causes is not believed.

A second judge concurs, and notes his concern that the jury was misled by the suggestion that words along are not sufficient provocation.

I make special reference to that part of the charge in which it was said “it is a question of fact for you to consider whether calling a man names and throwing stones which did not hit him by boys is a case for stabbing with a knife, the kind of provocation spoken of here. It is for you. It has been very seldom, if ever, held to be that kind of provocation.” It is a matter of law that “insulting words” may be provocation. Whether they are sufficient to provoke within the meaning of the law, is a matter for the jury.

The other 3 judges, however, denied Mr. Sampson’s appeal.

I am suggesting that when the learned trial Judge spoke of the stones not hitting, all he meant, and all the jury would understand he meant, was that the provocation would be greater if he had been actually struck by the stones

I am further of opinion that, even if exception can be taken to the parts of the learned Judge’s charge referred to above, no substantial wrong or miscarriage of justice has occurred.

Under what I regard as proper instruction, the jury found the prisoner guilty of murder, thus negativing the suggestion that the prisoner caused the death of the deceased in the heat of passion caused by sudden provocation and I see no good reason for disturbing the verdict.

Whether words can be sufficiently provocative to be a defence that reduces homicide to manslaughter, I expect so, if they constitute an independent offence such as hate speech. Under s.232 of the Criminal Code:

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2), and

(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

When I looked for an appropriate image to conclude this meandering, Google advised: “Results for ‘bbq chicken and breasts’ may contain adult oriented content. Safe Search must be turned off to display these results.” It really wasn’t as bad as I feared.